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ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT

[January 18, 2006]

Justice OConnor
delivered the opinion of the Court.

We do not revisit our abortion
precedents today, but rather address a question of remedy: If
enforcing a statute that regulates access to abortion would be
unconstitutional in medical emergencies, what is the
appropriate judicial response? We hold that invalidating the
statute entirely is not always necessary or justified, for
lower courts may be able to render narrower declaratory and
injunctive relief.

I

A

In 2003, New Hampshire enacted the
Parental Notification Prior to Abortion Act. N. H. Rev.
Stat. Ann. §§132:24132:28 (Supp. 2004). The
Act prohibits physicians from performing an abortion on a
pregnant minor (or a woman for whom a guardian or conservator
has been appointed) until 48 hours after written notice of the
pending abortion is delivered to her parent or guardian.
§132:25(I). Notice may be delivered personally or by
certified mail. §§132:25(II), (III). Violations of
the Act are subject to criminal and civil penalties.
§132:27.

The Act allows for three circumstances
in which a physician may perform an abortion without notifying
the minors parent. First, notice is not required if
[t]he attending abortion provider certifies in the
pregnant minors record that the abortion is necessary to
prevent the minors death and there is insufficient time
to provide the required notice. §132:26(I)(a).
Second, a person entitled to receive notice may certify that he
or she has already been notified.§132:26(I)(b).
Finally, a minor may petition a judge to authorize her
physician to perform an abortion without parental notification.
The judge must so authorize if he or she finds that the minor
is mature and capable of giving informed consent, or that an
abortion without notification is in the minors best
interests. §132:26(II). These judicial bypass
proceedings shall be confidential and shall be given
precedence over other pending matters so that the court may
reach a decision promptly and without delay, and access
to the courts shall be afforded [to the] pregnant minor
24 hours a day, 7 days a week.
§§132:26(II)(b), (c). The trial and appellate courts
must each rule on bypass petitions within seven days.
Ibid.

The Act does not explicitly permit a
physician to perform an abortion in a medical emergency without
parental notification.

B

Respondents are Dr. Wayne Goldner, an
obstetrician and gynecologist who has a private practice in
Manchester, and three clinics that offer reproductive health
services. All provide abortions for pregnant minors, and each
anticipates having to provide emergency abortions for minors in
the future. Before the Act took effect, respondents brought
suit under 42 U.S.C.
§ 1983 alleging that the Act is unconstitutional
because it fails to allow a physician to provide a prompt
abortion to a minor whose health would be endangered by
delays inherent in the Act. App. 10 (Complaint, ¶24).
Respondents also challenged the adequacy of the Acts life
exception and of the judicial bypass confidentiality
provision.

The District Court declared the Act
unconstitutional, see 28 U.S.C. §
2201(a), and permanently enjoined its enforcement. It
held, first, that the Act was invalid for failure on its
face to comply with the constitutional requirement that
laws restricting a womans access to abortion must provide
a health exception. Planned Parenthood of Northern
New Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH
2003). It also found that the Acts judicial bypass would
not operate expeditiously enough in medical emergencies. In
the alternative, the District Court held the Acts life
exception unconstitutional because it requires physicians to
certify with impossible precision that an abortion is
necessary to avoid death, and fails to protect
their good faith medical judgment.

The Court of Appeals for the First
Circuit affirmed. Citing our decisions in Stenberg v.
Carhart, 530
U.S. 914, 929930 (2000), Planned Parenthood of
Southeastern Pa. v. Casey,505 U.S. 833, 879
(1992) (plurality opinion), and Roe v. Wade, 410 U.S. 113,
164165 (1973), it observed: Complementing the
general undue burden standard [for reviewing abortion
regulations], the Supreme Court has also identified a specific
and independent constitutional requirementthat an
abortion regulation must contain an exception for the
preservation of the pregnant womans health.
Planned Parenthood of Northern New Eng. v. Heed,
390 F.3d 53, 58 (2004). It went on to conclude that the
Act is unconstitutional because it does not contain an explicit
health exception, and its judicial bypass, along with other
provisions of state law, is no substitute. The Court of
Appeals further found the Act unconstitutional because, in its
view, the life exception forces physicians to gamble with their
patients lives by prohibiting them from performing an
abortion without notification until they are certain that death
is imminent, and is intolerably vague. Because the district
and appellate courts permanently enjoined the Acts
enforcement on the basis of the above infirmities, neither
reached respondents objection to the judicial
bypass confidentiality provision.

We granted certiorari, 544 U.S. __
(2005), to decide whether the courts below erred in
invalidating the Act in its entirety because it lacks an
exception for the preservation of pregnant minors health.
We now vacate and remand for the Court of Appeals to
reconsider its choice of remedy.

II

As the case comes to us, three
propositionstwo legal and one factualare
established. First, States unquestionably have the right to
require parental involvement when a minor considers terminating
her pregnancy, because of their strong and legitimate
interest in the welfare of [their] young citizens, whose
immaturity, inexperience, and lack of judgment may sometimes
impair their ability to exercise their rights wisely.
Hodgson v. Minnesota,497 U.S. 417,
444445 (1990) (opinion of Stevens, J.).1 Accordingly, we have long
upheld state parental involvement statutes like the Act before
us, and we cast no doubt on those holdings today. See,
e.g., Lambert v. Wicklund, 520 U.S. 292 (1997)
(per curiam);Casey, supra, at 899 (joint
opinion); Ohio v. Akron Center for Reproductive
Health, 497 U.S.
502, 510519 (1990); Hodgson, 497 U.S., at 461
(OConnor, J., concurring in part and concurring in
judgment in part); id., at 497501 (Kennedy, J.,
concurring in judgment in part and dissenting in part).2

Second, New Hampshire does not dispute,
and our precedents hold, that a State may not restrict access
to abortions that are necessary, in appropriate medical judgment, for
preservation of the life or health of the mother. Casey, 505 U.S., at 879
(plurality opinion) (quoting Roe, 410 U.S., at
164165); see also Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747,
768769 (1986); Planned Parenthood Assn. of Kansas
City, Mo., Inc. v. Ashcroft, 462 U.S. 476,
482486 (1983) (opinion of Powell, J.); Planned
Parenthoodof Central Mo. v. Danforth, 428 U.S. 52, 79
(1976).

Third, New Hampshire has not taken
real issue with the factual basis of this litigation: In some
very small percentage of cases, pregnant minors, like adult
women, need immediate abortions to avert serious and often
irreversible damage to their health. See 296 F. Supp. 2d,
at 65, n. 4.

New Hampshire has maintained that in
most if not all cases, the Acts judicial bypass and the
States competing harms statutes should
protect both physician and patient when a minor needs an
immediate abortion. See N. H. Rev. Stat. Ann.
§627:3(I) (1996) (for criminal liability, [c]onduct
which the actor believes to be necessary to avoid harm to
another is justifiable if the desirability and urgency
of avoiding such harm outweigh, according to ordinary standards
of reasonableness, the harm sought to be prevented by the
statute defining the offense charged); §627:1
(similar for civil liability). But the District Court and
Court of Appeals found neither of these provisions to protect
minors health reliably in all emergencies. 296
F. Supp. 2d, at 6566; 390 F.3d, at 6162. And
New Hampshire has conceded that, under our cases, it would be
unconstitutional to apply the Act in a manner that subjects
minors to significant health risks. See Reply Brief for
Petitioner 2, 8, 11; Tr. of Oral Arg. 6, 14.

III

We turn to the question of remedy:
When a statute restricting access to abortion may be applied in
a manner that harms womens health, what is the
appropriate relief? Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution
to the problem. We prefer, for example, to enjoin only the
unconstitutional applications of a statute while leaving other
applications in force, see United States v.
Raines, 362 U.S.
17, 2022 (1960), or to sever its problematic portions
while leaving the remainder intact, United States v.
Booker, 543
U.S. 220, 227229 (2005).

Three interrelated principles inform
our approach to remedies. First, we try not to nullify more of
a legislatures work than is necessary, for we know that
[a] ruling of unconstitutionality frustrates the intent
of the elected representatives of the people.
Regan v. Time, Inc., 468 U.S. 641, 652
(1984) (plurality opinion). It is axiomatic that a
statute may be invalid as applied to one state of facts
and yet valid as applied to another. Dahnke-Walker
Milling Co. v. Bondurant, 257 U.S. 282, 289
(1921). Accordingly, the normal rule is that
partial, rather than facial, invalidation is the required
course, such that a statute may be declared
invalid to the extent that it reaches too far, but otherwise
left intact. Brockett v. Spokane Arcades,
Inc., 472 U.S.
491, 504 (1985); see also Tennessee v.
Garner, 471 U.S.
1 (1985); United States v. Grace, 461 U.S. 171,
180183 (1983).

Second, mindful that our
constitutional mandate and institutional competence are
limited, we restrain ourselves from rewrit[ing] state law
to conform it to constitutional requirements even as we
strive to salvage it. Virginia v. American
Booksellers Assn., Inc., 484 U.S. 383, 397
(1988). Our ability to devise a judicial remedy that does not
entail quintessentially legislative work often depends on how
clearly we have already articulated the background
constitutional rules at issue and how easily we can articulate
the remedy. In United States v. Grace, supra,
at 180183, for example, we crafted a narrow remedy
much like the one we contemplate today, striking down a statute
banning expressive displays only as it applied to public
sidewalks near the Supreme Court but not as it applied to the
Supreme Court Building itself. We later explained that the
remedy in Grace was a relatively simple
matter because we had previously distinguished between
sidewalks and buildings in our First Amendment
jurisprudence. United States v. Treasury
Employees, 513
U.S. 454, 479, n. 26 (1995). But making distinctions
in a murky constitutional context, or where line-drawing is
inherently complex, may call for a far more serious
invasion of the legislative domain than we ought to
undertake. Ibid.

Third, the touchstone for any
decision about remedy is legislative intent, for a court cannot
use its remedial powers to circumvent the intent of the
legislature. Califano v. Westcott, 443 U.S. 76, 94 (1979)
(Powell, J., concurring in part and dissenting in part); see
also Dorchy v. Kansas, 264 U.S. 286,
289290 (1924) (opinion for the Court by Brandeis, J.).
After finding an application or portion of a statute
unconstitutional, we must next ask: Would the legislature have
preferred what is left of its statute to no statute at all?
See generally Booker, supra, at 227;
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 191
(1999); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987); Champlin Refining Co. v. Corporation
Commn of Okla., 286 U.S. 210, 234
(1932); The Employers Liability Cases, 207 U.S. 463, 501
(1908); Allen v. Louisiana, 103 U.S. 80,
8384 (1881); Trade-Mark Cases, 100 U.S. 82,
9798 (1879). All the while, we are wary of legislatures
who would rely on our intervention, for [i]t would
certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the
courts to step inside to announce to whom the statute may
be applied. United States v. Reese, 92 U.S. 214, 221
(1876). This would, to some extent, substitute the
judicial for the legislative department of the
government. Ibid.

In this case, the courts below chose
the most blunt remedypermanently enjoining the
enforcement of New Hampshires parental notification law
and thereby invalidating it entirely. That is understandable,
for we, too, have previously invalidated an abortion statute in
its entirety because of the same constitutional flaw. In
Stenberg, we addressed a Nebraska law banning so-called
partial birth abortion unless the procedure was
necessary to save the pregnant womans life. We held
Nebraskas law unconstitutional because it lacked a health
exception. 530 U.S., at 930 (lack of a health exception was an
independent reaso[n] for finding the ban
unconstitutional). But the parties in Stenberg did not
ask for, and we did not contemplate, relief more finely
drawn.

In the case that is before us,
however, we agree with New Hampshire that the lower courts need
not have invalidated the law wholesale. Respondents, too,
recognize the possibility of a modest remedy: They pleaded for
any relief just and proper, App. 13 (Complaint),
and conceded at oral argument that carefully crafted injunctive
relief may resolve this case, Tr. of Oral Arg. 38, 40. Only a
few applications of New Hampshires parental notification
statute would present a constitutional problem. So long as
they are faithful to legislative intent, then, in this case the
lower courts can issue a declaratory judgment and an injunction
prohibiting the statutes unconstitutional
application.

There is some dispute as to whether
New Hampshires legislature intended the statute to be
susceptible to such a remedy. New Hampshire notes that the Act
contains a severability clause providing that [i]f any
provision of this subdivision or the application thereof to any
person or circumstance is held invalid, such invalidity shall
not affect the provisions or applications of this subdivision
which can be given effect without the invalid provisions or
applications. §132:28. Respondents, on the other
hand, contend that New Hampshire legislators preferred no
statute at all to a statute enjoined in the way we have
described. Because this is an open question, we remand for the
lower courts to determine legislative intent in the first
instance.

IV

Either an injunction prohibiting
unconstitutional applications or a holding that consistency
with legislative intent requires invalidating the statute in
toto should obviate any concern about the Acts life
exception. We therefore need not pass on the lower
courts alternative holding. Finally, if the Act does
survive in part on remand, the Court of Appeals should address
respondents separate objection to the judicial
bypass confidentiality provision. The judgment of the
Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.

2. It is the sad reality, however, that young
women sometimes lack a loving and supportive parent capable of
aiding them to exercise their rights wisely.
Hodgson, 497 U.S., at 444; see id., at
450451 and n. 36 (holding unconstitutional a statute
requiring notification of both parents, and observing that
the most common reason young women did not notify a
second parent was that the second parent was a child- or
spouse-batterer, and notification would have provoked further
abuse (citation omitted)). See also Department of Health
and Human Services, Administration on Children, Youth and
Families, Child Maltreatment 2003, p. 63 (2005) (parents were
the perpetrators in 79.7% of cases of reported abuse or
neglect).